advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, January 18, 2017

why DACP Scheme cannot be extended to Doctors engaged as Commissioned Officers in AMC Cadre. =As regards the writ petition filed under Article 32 of the Constitution, we dispose of the same with liberty to the writ petitioner to either intervene in the remanded proceedings before the Tribunal or to file a fresh Original Application for the relief claimed by him in the present writ petition, which can be decided by the Tribunal along with the other remanded original applications. Accordingly, we partly allow the two appeals preferred by Union of India and thereby set aside the order(s) passed by the Tribunal in the respective appeals and instead remand the respective Original Applications to the Tribunal for reconsideration of the entire matter de novo. Needless to observe, the Tribunal may decide all the remanded original applications or any further original application on the same subject matter analogously to avoid any conflicting decision and multiplicity of proceedings. We grant liberty to the original applicant(s) to amend the pleadings, if so advised, including to ask for further relief. In that event, however, the Tribunal will give opportunity to the appellants (respondents in the Original Application(s)) to file a response to the amended pleadings and further relief, as the case may be.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3798 OF 2015



 Union of India and Ors.                                       … Appellants



             Versus



 K.P. Singh and Anr.                              … Respondents



                                    WITH

                  C.A.No.3799/2015 AND W.P. NO. 957 OF 2014



                               J U D G M E N T



A.M. KHANWILKAR, J.



      The respondents in the aforementioned two appeals and  the  petitioner
in the companion writ petition served as officers of Army Medical  Corps,  a
Medical Service, under the Government of India, with more than 20  years  of
commissioned/Group-A gazette service.  The Army Medical Corps is a cadre  of
Doctors serving in the Army,  Navy  and  Air  Force.   It  is  an  organized
medical service of Central Government.

2.    The respondents  in  the  two  appeals  approached  the  Armed  Forces
Tribunal at New Delhi, by way of an  Original  Application  contending  that
they were entitled to receive Dynamic Assured Career Progression as per  the
DACP  Scheme,  as  approved  by  the  Central  Government.   Even  the  writ
petitioner in the companion writ petition has sought similar relief. He  has
prayed for a direction   against the Central  Government  to  implement  the
DACP scheme even  in  relation  to  the  medical  officers/doctors  who  are
commissioned officers of the Armed Forces.

3.    An Original Application seeking similar relief was filed by  one  Col.
Sanjeev Sehgal[1] . The same was allowed by the Tribunal  vide  order  dated
18th July 2011.  In that case, the Tribunal  had  noted  the  stand  of  the
department (appellants) that the matter  regarding  implementation  of  DACP
scheme qua the doctors in AMC was  still  under  examination.  Further,  the
appropriate Authority was expected to take a decision in that  behalf  after
examining the issue  in due course.  The  Tribunal,  however,  proceeded  to
dispose of the said Original Application in the following terms:

“Heard the learned  counsel  for  the  both  the  parties  and  perused  the
documents including Annexures 1,2 and 3.

      There is no denial that the DACP Scheme is equally applicable  to  AMC
Cadre.  The scheme has already  been  implemented  in  several  Departments.
However, the same has not been implemented  in  the  Armed  Forces  for  the
reasons best known to them and the matter is  hinging  for  the  last  about
three years.  This is  clearly  detrimental  to  the  interest  of  the  AMC
officers.  It ought to have been implemented much earlier  by  the  Ministry
of Defence and the concerned authorities of Armed Forces.

      In the facts and circumstances, the Respondents are directed to  issue
instructions for the implementation of the  DACP  Scheme  in  the  light  of
Annexures A-1 A-2 and A-3 attached with the application within three  months
from the date of receipt of copy of this order.

      With the above direction, this application stands disposed of”.



This decision became final consequent  to  the  dismissal  of  Civil  Appeal
filed by the Department before this Court.

4.    Relying on the said decision, the Tribunal allowed  the  two  Original
Applications filed by the respondents in  the  aforementioned  appeals.  The
Tribunal  also  directed  the   department   to   issue   instructions   for
implementation of the DACP Scheme and by placing the  concerned  respondents
to the 4th financial upgradation of grade pay  of  Rs.  10,000/-  under  the
DACP Scheme.  The original application filed by the respondents in C.A.  No.
3798 of 2015, was allowed by the Armed Forces Tribunal at New  Delhi,  being
O.A. 178 of 2014, on 17th April, 2014.  Similarly, the Original  Application
No. 108 of 2014 filed by the respondents in  C.A.  No.  3799  of  2015   was
allowed vide order dated  9th  April,  2014.  The  department  has  assailed
these orders in the respective appeals.

5.      When  the  present  appeals  were  pending  for  consideration,  the
petitioner in companion W.P. No. 957 of 2014 approached this  Court  praying
for the following relief:

“Issue a mandamus for direction to the respondents thereby to implement  the
recommendations of 6th Pay Commission from the date of issuance of  Official
Memorandum  (OM)  dated  29.10.2008  issued  by  the  Government  of  India,
Ministry of Health and Family Welfare, CHS division, in Army  Medical  Corps
(AMC) within a specific time;



Pass any such other order(s) as deemed fit and proper to secure the ends  of
justice”.



6.    It is an admitted position that  the  decision  of  the  Armed  Forces
Tribunal, Chandigarh Bench in the case of Col. Sanjeev  Sehgal  (supra)  was
assailed by the appellants by way  of  Civil  Appeal  D.No.  14342  of  2013
before  this  Court.   That  was,  however,  summarily  dismissed   at   the
preliminary hearing stage on 23rd September, 2013 by the Bench  presided  by
Justice T.S. Thakur  (as he then was).  The order reads thus:

      “Heard.

      Apart from the fact that there is an inordinate  delay of 589 days  in
the filing of this application for grant of leave,  we  see  no  substantial
question of law of general/public importance arises for  our  consideration.
The prayer for leave to appeal is accordingly declined and  the  application
dismissed”.



7.    Nonetheless the present appeals and writ petition came to be  admitted
on 13th April, 2015 after due consideration,  by  a  Bench  of  two  learned
Judges of which  Justice  T.S.  Thakur  (as  he  then  was)  was  a  member.
Further, when the appeals and  writ  petition  were  pending  and  heard  on
different dates,  the  appellants  were  granted  liberty  to  file  further
affidavits.  Keeping in mind the stand taken by the department,  this  Court
(presided by Chief Justice T.S.Thakur as he then was) vide order dated  11th
December, 2015 permitted the appropriate Authority  to  revisit  the  matter
afresh and take a decision as may  be  advised.  Indeed,  that  was  without
prejudice to the rights and  contentions  of  the  parties  in  the  present
proceedings. Pursuant to  the  liberty  granted  by  this  Court,  a  formal
decision has been taken at the highest level in  the  Ministry  of  Defence,
Government of India which has been communicated to the Chairman,  Chiefs  of
Staff Committee (COSC) vide letter dated 13th January,  2016.   We  deem  it
apposite to reproduce the said  letter  in  its  entirety  inasmuch  as  the
department has reiterated the same stand in  the  two  appeals  as  also  to
oppose the writ petition.  The same reads thus:
                                                               “Annexure A-3

                          No. 10/1/2010-D(Medical)
                             Government of India
                             Ministry of Defence

                                               Sena Bhavan, New Delhi-110011
                        Dated the 13th January, 2016
To,
The Chairman,
Chiefs of Staff Committee (COSC),
COSC Secretariat,
263D, South Block,
New Delhi.

Subject: Recommendations  of  the  COSC  regarding  Dynamic  Assured  Career
Progression (DACP) Scheme in respect of Defence Forces Personnel.
Sir,
      I am directed to refer to the letter No.C/7026/6tt CPC/Vol. III  dated
25.8.2015 of the Chairman, Chiefs of Staff Committee  (COSC)  on  the  above
noted subject, and to say that as requested in  the  aforesaid  letter,  the
COSC was given an opportunity to present the case of the Services for  grant
of DACP Scheme to all Defence Forces Officers  alongwith  the  Armed  Forces
Medical Services  (AFMS)  Officers  before  the  Hon’ble  Raksha  Mantri  on
08.01.2016. In the presentation made by the COSC, it  was  stated  that  the
DACP Scheme, as recommended by the 6th Central Pay Commission (CPC) in  para
3.6 of its report, is  applicable  to  AFMS  doctors  also.  The  COSC  also
referred to para 12  of  the  Resolution  No.1/1/2008-IC  dated  29.08.2008,
wherein, it has been stated  that  the  DACP  Scheme  for  doctors  will  be
extended upto Senior Administrative Grade (SAG) for Medical  Doctors  having
20 years of regular service, or 7  years  of  regular  service  in  the  Non
Functional Selection Grade (NFSG) of Rs.8700/- grade pay in  PB-4  and  that
all the medical doctors whether belonging to organized services  or  holding
isolated posts will be covered by the DACP Scheme.
2.    During the course of the presentation,  the  COSC  was  informed  that
since separate recommendations were made by the 6th CPC for  Defence  Forces
Personnel, the recommendation made in para 3.6  is  not  applicable  to  the
AFMS doctors as they are part and parcel of the  Defence  Forces.  The  COSC
was also informed that the Resolution dated 29.08.2008 of  the  Ministry  of
Finance,  Department  of  Expenditure  is  applicable  only  in  respect  of
civilian government employees, as clearly stated  in  para  1  of  the  said
Resolution and therefore, the recommendation made  in  para  12  thereof  is
applicable in respect of civilian doctors and not in  respect  of  the  AFMS
doctors.
3.    Further, the relevant aspects  for  grant  of  DACP  to  Armed  Forces
Medical Services (AFMS) officers, as also for grant of  same  Grade  Pay  to
all Defence Officers, as recommended by the COSC have also  been  considered
carefully.
4.    Upon such  consideration,  the  first  significant  aspect  which  has
clearly emerged is that the DACP is not at all  applicable  to  Commissioned
Officers serving as doctors in AFMS Cadre, for more than  one  reason  which
are set out herein below:
      (i)   As per existing Govt. orders commissioned  officers  serving  as
doctors belonging to AFMS constitute a separate class  in  themselves.  They
have  a  separate  treatment   with   regard   to   recruitment   procedure,
appointment, terms and conditions of their employment including  promotions,
pay structure etc. as contained in AI 74/1976 issued by the Govt. of  India,
Ministry of Defence. Being commissioned officers they are  employed  in  the
Indian Army, the Indian Air Force and the Indian Navy, i.e.,  Army,  Navy  &
Air Force. They are unlike other civilian  doctors  serving  in  Directorate
General of Armed  Forces  Medical  Services  (DGAFMS),  who  do  not  become
commissioned officers and for whom separate  Govt.  orders  exist  regarding
their terms and conditions of service.
      (ii)  Similarly, the procedure of appointment,  terms  and  conditions
of employment including promotions, pay structure etc.  for  other  civilian
doctors appointed in other Departments/Ministries of the Govt. of India  are
entirely  different.  These  civilian  doctors  form/constitute  a  separate
class. Their service conditions  etc.  are  dealt  with  by  the  respective
Ministries like Ministry of Health & Family Welfare, Ministry  of  Railways,
Ministry of Home Affairs in cases of doctors in Para  Military  Forces  like
Border Security Force, Central Reserve Police Force etc.  and  are  governed
by CCS Rules etc.
      (iii) Therefore, doctors who are commissioned officers in AFMS in  the
Indian Army, the Indian Air Force  and  the  Indian  Navy  form  a  separate
class. The successive Central Pay Commissions  have  also  dealt  with  them
separately, in the recommendations made by  them  to  Govt.  of  India.  The
recommendations are also made  by  the  Central  Pay  Commissions  providing
separately   for   the   civilian    doctors    dealt    with    by    other
Ministries/Departments  such  as  Ministry  of  Health  &  FW.  Ministry  of
Railways, etc.
      (iv)  In the present case,  the  doctors  constituting  AFMS  who  are
Commissioned Officers in the Indian Army,  the  Indian  Air  Force  and  the
Indian Nave are to be governed  by  the  resolution/decision  taken  by  the
Ministry  of  Defence,  Govt.  of  India  on  30.08.2008  and  not  by   the
resolution/decision dated 29.08.2008 by  the  Ministry  of  Finance  dealing
with  all  civilian  Government  servants  including  doctors  who  are  not
commissioned officers in the Indian Army,  the  Indian  Air  Force  and  the
Indian Navy.
      (v)   The existing  sanctioned  hierarchy  of  promotion  for  doctors
joining the Indian Army, the  Indian  Air  Force  and  the  Indian  Navy  as
commissioned officers is as under:
      (a)   Captain/Flight Lieutenant/Lieutenant
      (b)   Major/Squadron Leader/Lieutenant Commander
      (c)   Lieutenant Colonel/Wing Commander/Commander
      (d)   Colonel/Group Captain/Captain(Navy)
      (e)   Brigadier/Air Commodore/Commodore(Navy)
      (f)   Major General/Air Vice Marshal/Rear Admiral
      (g)   Lieutenant General/Air Marshal/Vice Admiral
(vi)  As per existing Govt. orders issued by the Govt.  of  India,  Ministry
of Defence, promotion in Army Medical Corps(AMC) upto the rank  of  Captain,
Major and Lt. Col and their equivalents in the Indian Navy  and  the  Indian
Air Force are by time scale subject to meeting the laid  down  criteria  and
substantive promotion to the ranks of Colonel, Brigadier, Major General  and
Lieutenant General and their equivalents in the Indian Navy and  Indian  Air
Force will be by ‘selection’ to fill the vacancies authorized from  time  to
time subject to the officer being found fit in all respects  by  appropriate
selection board as approved by the competent authority.
      (vii) In terms of para 10 of AI 74/1976,  officers  granted  permanent
commission in the Army Medical Corps will  receive  pay  and  allowances  at
such rates and under such conditions as are laid down in Pay and  Allowances
Regulations for Officer of the Army, as amended from time  to  time  by  the
Ministry of Defence, Govt. of  India  in  consultation  with  Department  of
Expenditure, Ministry of Finance.
      (viii)     It is evident from record that before the 5th  Central  Pay
Commission, doctors belonging to Central Health Service, Railways  etc.  had
raised a grievance of stagnation, lack of  promotional  avenues  etc.  while
dealing with terms and conditions of  service  and  pay  and  allowances  of
doctors serving in Central Health Service (CHS), the Railway Health  Service
and the Indian  Ordnance  Factories  Services,  etc.  the  5th  Central  Pay
Commission noted that there was stagnation and lack  of  proper  promotional
avenues for such doctors in the aforesaid three services  and  as  such,  it
recommended DACP for them. Therefore, for the benefit of  doctors  belonging
to  CHS,  Railways,  Indian  Ordnance  Factories   Services-the   DACP   was
recommended by the CPC  only  for  the  civilian  doctors  governed  by  the
Ministry of Health & Family Welfare etc. in that category. This benefit  was
not extended to commissioned  officers  serving  as  doctors  in  the  three
Services being governed by separate norms including pay scales,  promotions,
etc. laid down by the Ministry of Defence.
      (ix)  It is also evident from record that  the  Ministry  of  Defence,
Government of India, vide letter dated 28.10.2005, conveyed the sanction  of
the President to the reckonable commissioned service for  promotion  to  the
rank lieutenant Colonel and equivalent as 11  years  and  for  promotion  to
Colonel (Time Scale) as 24 years. Thus, this  letter  was  directed  towards
restructuring of Non-Select Ranks in commissioned officers cadre of AFMS.
      (x)    The  above  mentioned  order  dated  28.10.2005  was  aimed  at
granting  faster   promotions   to   the   commissioned   officers   doctors
constituting a separate class. The difference  in  promotional  avenues  and
hierarchical cadre, pay and allowances and other benefits  of  AMC  officers
vis-à-vis civilian doctors is tabulated and shown as below:
|            |Doctors of AFMS as Commissioned   |Civilian Doctors under   |
|            |officers in the Indian Army, the  |the Central Health Scheme|
|            |Indian Air Force and the Indian   |etc.                     |
|            |Navy                              |                         |
|Governing   |Ministry of Defence (MoD) vide    |Ministry of Health &     |
|resolution  |No.1(3)/2008-D (Pay/Services)     |Family Welfare dated     |
|issued by   |dated 30.8.2008                   |30.10.2008 issued        |
|the Govt. of|                                  |pursuant to Ministry of  |
|India       |                                  |Finance resolution dated |
|            |                                  |29.8.2008                |
|Service     |AFMS doctors are Commissioned     |Government by different  |
|conditions  |Officers in Military Uniform and  |set of terms and         |
|            |are therefore part of Armed       |conditions of service as |
|            |Forces. All the service conditions|applicable under the     |
|            |in the matter of pay and          |applicable rules such as |
|            |allowances and service benefits   |Central Civil Services   |
|            |applicable to other army personnel|(CCS) Rules etc. in      |
|            |are applicable to AFMS doctors.   |respective Health        |
|            |                                  |services.                |
|Grade Pay   |…..Rs.6,100/-                     |After implementing the   |
|(GP)        |Rs.6,600/-                        |DACP scheme Rs.5,400/-   |
|            |Rs.8,000/-                        |….. Rs.6,600/-           |
|            |Rs.8,700/-                        |Rs.7,600/- …..           |
|            |Rs.10,000/-                       |Rs.10,000/-              |
|            |Rs.12,000/-                       |                         |
|Promotional |Captain/Flight                    |After grant of DACP      |
|Avenue/hiera|Lieutenant/Lieutenant             |promotion avenues of     |
|rchy        |Major/Squadron Leader/Lieutenant  |civilian doctors are:    |
|            |Commander                         |Medical Officers         |
|            |Lieutenant Colonel/Wing           |Senior Medical Officers  |
|            |Commander/Commander               |Chief Medical Officer    |
|            |Colonel/Group Captain/Captain     |Chief Medical Officer    |
|            |(Navy)                            |(NFSG)                   |
|            |Brigadier/Air Commodore/Commodore |SAG                      |
|            |(Navy)                            |                         |
|            |Major General/Air Vice            |                         |
|            |Marshal/Rear Admiral              |                         |
|            |Lieutenant General/Air            |                         |
|            |Marshal/Vice Admiral              |                         |
|            |DGAFMS                            |                         |
|Other       |Military Service Pay @ Rest.      |No such allowance/benefit|
|service     |6000/- pm for all officers up to  |is available to civilian |
|benefits    |the rank of Brig in addition to   |doctors dealt with by the|
|            |Grade Pay, Outfit allowance, Kit  |decisions of the Ministry|
|            |Maintenance Allowance, Ration     |of Health & Family       |
|            |Money decided from time to time   |Welfare.                 |



       (xi)   It  is  evident  from  record  that  Armed  Forces   Personnel
(Commissioned Officers) and Civilian Government employees are two  different
classes, the Central Pay Commissions  (CPC)  make  separate  recommendations
for them. The 6th CPC also made  separate  recommendations  with  regard  to
‘Pay Scales of Defence Forces Personnel’ (Chapter  2.3)  and  ‘Allowances  &
Conditions  of  service  of  Defence  Forces  Personnel’   (Chapter   4.10).
Therefore, when the decisions was  to  be  taken  by  the  Govt.  of  India,
Ministry of Defence with  regard  to  recommendations  of  6th  Central  Pay
Commission regarding grant  of  pay  and  allowances  etc.  to  the  defence
personnel,  the  draft  resolution  was  examined  by  the   Department   of
Expenditure, Ministry of Finance.

(xii) A note was issued by  the  Department  of  Expenditure  on  29.08.2008
making it abundantly clear  that  the  recommendation  of  Dynamic  ACP  has
nothing to do with the doctors inducted  as  commissioned  officers  in  the
Indian Army, the Indian Air Force  and  the  Indian  Navy  by,  inter  alia,
observing as under:

“Ministry  of  Defence  may  please  refer  to  Draft  Resolution  regarding
implementation  of   the   Government’s   decision   on   Pay   Commission’s
recommendations relating to Officers of Defence Forces  for  vetting  before
issue.

2.    A point (ix) has been added in  the  Draft  Resolution  regarding  the
enhanced  Grade  Pay  for  middle  level  officers  (from  Captain/Equ.   To
Brigadier/equ.).

3.    In the annexure to the Resolution where revised pay scales  have  been
indicated, for the sake of clarity and understanding, MOD may  like  to  put
two tables simultaneously one containing the recommendations  of  the  Sixth
CPC and the other showing final decision of the Government in  this  regard.
Similar tables have been put  in  this  Ministry’s  resolution  relating  to
civilian Government employees.

4.    In the Annexure to the Resolution relating to  Allowances  concessions
& benefits and conditions of service of Defence  Forces  personnel,  against
item 8, point no.(ii) relating to grant of Dynamic ACP to doctors  has  been
deleted, as the same is not applicable to doctors in the Defence Forces…….”

(xiii)      The above-mentioned unambiguous position incorporated in para  4
of the note dated 29.08.2008 of the Department of Expenditure to the  effect
that DACP Scheme has  nothing  to  do  and  is  not  applicable  to  doctors
(Commissioned Officers) in the Indian Army, the Indian  Air  Force  and  the
Indian Navy, and was accordingly not mentioned in  the  eventual  Resolution
issued  by  the  Ministry  of  Defence,  Govt.  of   India   on   30.08.2008
implementing the recommendations of the 6th CPC.

(xiv) Therefore, as in the past, two separate  Resolutions  were  issued  by
the Government conveying the decisions on the  recommendations  of  the  6th
CPC. One Resolution was issued by the Ministry of Finance in respect of  the
Civilian  employees  vide  resolution  No.1/1/2008-IC  dated  29.8.2008  and
another Resolution was issued by the  Ministry  of  Defence  in  respect  of
Armed  Forces  Personnel  (including  AFMS   Commissioned   Officers)   vide
No.1(30)/2008-D (Pay/Services) dated 30.08.2008.

(xv)  The civilian doctors including civilian doctors  in  the  AFMS  (other
than Commissioned Officers) are governed by the Resolution dated  29.08.2008
issued by the Ministry of  Finance,  Dept.  of  Expenditure  read  with  the
Circular by the Ministry of Health & Family Welfare dated 30.10.2008.

(xvi) As per Govt. orders the Resolution dated 29.08.2008  deals  only  with
the civilian employees of the Central Govt. in Groups  ‘A’,  ‘B’,  ‘C’,  ‘D’
including  civilian  doctors  in  the  DGAFMS   (other   than   Commissioned
Officers). The DACP Scheme for doctors in the  Resolution  dated  29.08.2008
dealt in para 12 is only with regard to civilian doctors including  civilian
doctors in the DGAFMS (other than Commissioned Officers).

(xvii)      The Resolution of the Ministry of Defence  dated  30.08.2008  is
for Defence personnel including doctors who are appointed  as  ‘Commissioned
Officers’. Para 5 of the said resolution of the Ministry  of  Defence  dated
30.08.2008 is reproduced as under;-

      “…..5.     The  decisions  taken  by  the  Government  accordingly  on
various recommendations of the Commission in respect of  officers  of  Armed
Forces are indicated in the statement at Annexure-I to this resolution.  The
existing pay scales of Officers of the Armed Forces  are  indicated  in  the
Statement at Annexure-II…..”

(xviii)     Item No.7 of Annexure-I and Item No.7  of  Annexure-IB  appended
to the Resolution of the Ministry  of  Defence  dated  30.08.2008  providing
separately for the  pay  for  AMC  Officers  and  also  payment  of  various
allowances for the doctors working as commissioned  officers  in  the  Armed
Forces.

(xix) it is also clear from the recommendations made by the 6th CPC in  para
3.6.7 of its Report that ‘the DACP Scheme  recommended  by  5”  Central  Pay
Commission for different streams  of  doctors  should  be  extended  to  all
doctors including those working in  isolated  posts.  The  promotions  under
DACP for other categories of doctors will be guided by the  same  conditions
as applied in case of doctors  working  in  Central  Health  Scheme”  is  in
respect of the Civilian Government  employees.  Accordingly,  the  same  was
mentioned in para 12 of  the  Resolution  dated  29.08.2008  issued  by  the
Deptt. Of Expenditure, Ministry of Finance  which  was  in  respect  of  the
Civilian  employees.  In  pursuance  of  this  Resolution   of   Deptt.   Of
Expenditure, Ministry of Finance, the Ministry of Health  &  Family  Welfare
(M/o  H&FW)  vide  their  O.M.  No.A.45012/2/2008-CHS.V   dated   29.10.2008
extended the DACP Scheme  to  all  medical  doctors,  whether  belonging  to
organized services or holding isolated posts. Thus, it  is  clear  that  the
O.M. dated 29.10.2008 of Mb H&FW is applicable only in respect  of  civilian
doctors and not in respect of the AFMS doctors,  as  the  AFMS  doctors  are
part and parcel of Armed Forces Personnel.

(xx)  However, for the civilian doctors of DGAFMS who are  not  commissioned
Officers, Ministry of Defence issued  a  Circular  dated  15.01.2009  making
available for them the benefit  of  DACP  Scheme.  As  per  existing  orders
civilian doctors (who are not the Commissioned Officers) working as  General
Duty Medical Officers and Teaching Sub-Cadre in the DGAFMS are always  dealt
with and provided  for  with  same  service  conditions/benefits  which  are
decided  in  relation  to  other  civilian  doctors  in  Central  Government
services by the respective authorities such as Ministry of Health  &  Family
Welfare, Railways, Ordnance Factories  etc.  and  their  service  conditions
decided by the Ministry of Defence, Govt.  of  India  for  the  commissioned
officers constituting AFMS Cadre.

(xxi) The doctors inducted as Commissioned Officers in the Indian Army,  the
Indian Air  Force  and  the  Indian  Navy  having  at  least  7  promotional
positions in their respective  services  i.e.  Army,  Navy  and  Air  Force,
having different pay scales etc. –  have  no  concern  whatsoever  with  the
terms and conditions of service of the  civilian  doctors.  As  demonstrated
above,  this  distinction  between  the  category  of  doctors  working   as
commissioned officers in the Indian Army,  the  Indian  Air  Force  and  the
Indian Navy governed by the norms laid down by the Ministry of  Defence  and
the civilian doctors governed  by  Ministry  of  Health  &  Family  Welfare,
Railways etc. – has always been well appreciated  and  acknowledged  by  the
successive  Pay  Commissions  including  the  5th  and   6th   Central   pay
Commissions.

(xxii)      The record of Court cases mentioned  and  sought  to  be  relied
upon by  the  COSC  nowhere  reveals  that  the  above-mentioned  clear  and
unambiguous distinction  between  these  two  categories  of  doctors,  i.e.
commissioned officers in the Indian Army,  the  Indian  Air  Force  and  the
Indian Navy and civilian doctors  were  properly  disclosed/placed/explained
to  the  Hon’ble  Armed  Forces  Tribunal  (AFT),  Chandigarh  Bench   while
defending  the  OA  filed  by  the   Col.   (Retd.)   Sanjeev   Sehgal   for
implementation of DACP Scheme for AFMS officers. These facts were  also  not
placed before the Hon’ble Supreme Court in Civil Appeal D No.14342 of  2013.
In the two subsequent court cases decided by the Ld. AFT,  Principal  Bench,
New Delhi while defending the OAs filed by Col.(Retd.) Ajamal  Singh  Bhayal
and Gp. Capt.(Retd.) K.P. Singh, again the true and correct  facts  in  this
regard were not placed before the AFT.

(xxiii)     It is evident from the order dated 18.7.2011 in O.A.  No.488  of
2011 passed by Ld. AFT. In other words, the  inapplicable  Resolution  dated
29.8.2008 was placed and relied upon in O.A. No.488 of 2011 and the  correct
Resolution dated 30.08.2008 of the Ministry of Defence  applicable  in  that
case was not placed before the Ld. AFT.

(xxiv)           When the above mentioned aspects came to  be  noticed,  the
matter was again examined and the case was taken up with  the  Ld.  Attorney
General for India, who advised the Govt. to file appeals before the  Hon’ble
Supreme Court of India in the two cases of Col.(Retd.) Ajamal  Singh  Bhayal
and Gp. Capt. (Retd.) K.P. Singh.

(xxv)       Therefore, the official records of the Govt.  clearly  establish
and demonstrate that doctors belonging to two  different  categories/classes
are  treated  and  provided  for  separately.  It  would  therefore  not  be
permissible to grant benefit of DACP (meant for civilian  doctors  including
the civilian doctors in the DGAFMS) to the doctors inducted as  Commissioned
Officers in the Indian Army, the Indian Air Force and the Indian Navy.

(xxvi)           The issue of grant of DACP Scheme with higher Grade Pay  to
doctors and higher Grade Pay to other commissioned  officers  of  the  three
Services as recommended by the COSC is not only impermissible but  also  has
far reaching serious huge financial and other structural  ramifications  for
the Defence Forces.

(xxvii)     The  impermissible  demand  [by  creating  a  confusion  by  not
placing correct facts] for making  available  the  benefit  of  DACP  Scheme
meant only for civilian  doctors  including  the  civilian  doctors  in  the
DGAFMS to the doctors inducted as Commissioned Officers in the Indian  Army,
the Indian Air Force and the Indian Navy who are  dealt  with  and  provided
for by the decisions of the Ministry of Defence, Govt.  of  India  –  has  a
potential of creating serious issues in the  Indian  Army,  the  Indian  Air
Force and the Indian Navy having 7 promotional avenues for doctors  inducted
as  commissioned  officers  and  are  at  par  with  the  other  non-doctors
commissioned officers in the Armed  Forces.  Such  an  impermissible  demand
also  inevitably  carries  with  it  a  huge  possibility  of  creating   an
irreversible imbalance in the working of the commissioned  officers  in  all
the Indian Army, the Indian Air Force and  the  Indian  Navy  in  that,  the
hitherto existing  same  yardstick  for  doctors  inducted  as  commissioned
officers and non-doctor commissioned officers in various Arms  and  Services
in all the three Services (approx. 70,000).

(xxviii)    In fact, it is on record that because of these reasons the  COSC
also inter alia, observed in its earlier communication that  grant  of  DACP
to doctors in AFMS will adversely impact intra-cadre Dynamics in respect  of
70,000  Commissioned  Officers.  The  COSC  had   also   stated   that   the
implementation of DACP should necessarily  be  in  consonance  with  Service
ethos and should subscribe and not upset the well  established  command  and
control structure.

7.     It  is  reiterated  that  in  view  of  the  above  mentioned   clear
distinction between two  different  classes  of  doctors  i.e.  Commissioned
Officers in the AFMS and civilian doctors [not in the class of  Commissioned
Officers], there  was  never  any  recommendation  by  the  6th  [being  the
appropriate body] for granting DACP to  doctors  recruited  as  Commissioned
Officers in the three Services.

8.    In view of the position stated  above,  it  is  clear  that  the  DACP
Scheme as brought out in M/o H&FW O.M. dated 29.10.2008, is  not  applicable
for AFMS doctors working as Commissioned Officers in the three Services  and
therefore, the same had not been and cannot be extended to them.

9.    This issues with the approval of Hon’ble Raksha Mantri.



Yours faithfully,

                                      (D.K. Paliwal)
                           Deputy Secretary (Medical)”



8.    The respondents in the two appeals and  the  petitioner  in  the  writ
petition, however contend that the  decision  of  the  Tribunal  dated  18th
July, 2011 in the case  of  Col.  Sanjeev  Sehgal  (supra)  having  attained
finality with the dismissal of the civil appeal preferred by the  department
before this Court on 25th September, 2013, it is not open to the  department
to contend to the contrary.  Any new plea to be taken by department  is  hit
by the principles of  res  judicata.   Further,  the  department  cannot  be
permitted to rely on new documents such as  Memorandum  dated  29th  August,
2008 and 30th August, 2008 which were never  pressed  into  service  in  the
earlier proceedings, that the department has acquiesced in the  decision  in
Col. Sehgal’s case  (supra)  consequent  to  the  dismissal  of  the  appeal
against that decision by this Court, by not preferring  any  review  against
the decision of this  Court.   Also  because,  after  the  decision  of  the
Supreme Court in the case  of  Col.  Sehgal  (supra),  the  department  took
positive steps and decided to act upon the direction given by  the  Tribunal
– as is manifest from the office note prepared by Shri  D.K.  Paliwal  dated
22nd  September,  2014.  That  has  been  duly  approved  by   the   Defence
Secretary,  Shri  R.K. Mathur on 10th September, 2014  and  finally  by  the
then Defence Minister himself on 13th September, 2014.  With the  change  of
Government, it is urged that it is not open to the  new  Government  or  the
new Defence Minister to take a different view of the matter and more  so  in
violation of the direction issued by  the  Tribunal  and  confirmed  by  the
Supreme Court.  It is contended that  consequent  to  the  decision  of  the
Supreme Court rejecting the appeal  preferred  by  the  department  in  Col.
Sehgal’s case (supra), the  direction  given  by  the  Tribunal  (Chandigarh
Bench) stood merged on the principle of doctrine of merger.  Therefore,  the
decision now taken by the present establishment  is  in  the  teeth  of  the
decision of the Supreme Court.  It is submitted that the  appeals  filed  by
the department are not maintainable and in any case  the  department  cannot
be permitted to rely on documents which were not part of the  record  before
the Tribunal when such a plea was not taken before the  Tribunal  either  in
the Original Applications filed by the respondents in the two appeals or  in
the previous round of  proceedings  in  the  case  of  Col.  Sanjeev  Sehgal
(supra).

9.    The respondents have also  invited  our  attention  to  the  incorrect
certification given by the advocate on record that no additional facts,  new
documents or grounds have been taken in the  appeal.    On  merits,   it  is
contended that the recommendation made by the 6th Pay  Commission  does  not
expressly exclude the application of  DACP Scheme  to  the  Doctors  in  the
Armed Forces Medical Services (AFMS).   On  the  other  hand,   it  is  wide
enough to include them.  Therefore, extending benefit of DACP to Doctors  in
AMC as has been granted  to  other  doctors  in  organized  and  unorganized
sectors   in the Central Government is  imperative.   They  further  contend
that there is no distinction made by the  order  dated  15th  January,  2009
between the sub cadre of civilian  doctors  and  doctors  belonging  to  the
cadre of regular Armed Forces.   Similarly,  even  the  6th  Pay  Commission
makes no such distinction.  In  any  case,  such  a  discrimination  is  not
permissible in law.  They further submitted that the appeals  filed  by  the
department are devoid of merits and deserve to be dismissed; and  instead  a
direction be given to the department to give the benefit of the DACP  Scheme
to doctors in the Army Medical Corps on the same terms as given  to  doctors
in  other  sub   cadres   of   AFMC   vide   order   No.12017/CMO/DGAFMS/DG-
2B/126/09/D(Med.) dated 15th January, 2009  and  arrears  be  paid  to  them
with 18 per cent interest per annum  with effect from  29th  October,  2008.
The  respondents  and  writ  petitioners  have  also  prayed  for   imposing
exemplary costs on the department for pursuing untenable pleas.

10.   The moot question for  our  consideration  is:   whether  the  medical
doctors serving as Commissioned Officers in Armed Forces are covered by  the
Ministry of Defence’s Resolution dated  30th  August  2008  or  Ministry  of
Finance’s Resolution dated 29th August 2008? Secondly,  whether  that  issue
is conclusively answered by the Tribunal  in  Col.  Sehgal’s  case  (supra)?
The decision of the Tribunal as upheld by this Court in  the  case  of  Col.
Sanjeev Sehgal (supra), was  in  the  context  of  the  relief  claimed  for
implementation of the Dynamic Assured Career Progression  Scheme  (DACP)  as
approved by the Central Government. In that  case  reliance  was  placed  on
para 3 of the  Office  Memorandum  bearing  No.F.No.A-45012/2/08-CH-V  dated
29th October 2008 issued by the  Ministry  of  Health  and  Family  Welfare,
Government of India. The said proceeding was contested  by  the  department.
The Tribunal noted the contents of the reply  filed  by  the  Department  to
oppose  the  said  Original  Application,   wherein  it  was  admitted  that
Government of India, Ministry of Health and Family Welfare  has  implemented
the DACP Scheme in respect  of  Officers  of  Central  Health  Services  and
Medical/Dental Doctors in Central  Government  respectively.   The  Tribunal
also noted the stand taken  by  the  Department  that  the  said  scheme  in
Defence has not been implemented and the matter is  under  consideration  at
various levels before military authorities and depending on the decision  to
be taken at the appropriate level, necessary orders will be  passed  in  due
course.  After  having  noticed  this  contention  of  the  department,  the
Tribunal disposed of the Original Application vide  order  dated  18th  July
2011, the relevant portion whereof has been extracted in  the  opening  part
of this judgment.  That decision was challenged before this Court by way  of
Civil Appeal D.No.1434/2013, which was dismissed at the preliminary  hearing
stage on 23rd September 2013. The order passed by this Court has  also  been
extracted hereinabove.

11.    On a fair reading of the said decision of  the  Tribunal  dated  18th
July 2011, all that it records is that there was no  denial  that  the  DACP
scheme is equally applicable to AMC Cadre. Further, the Scheme  has  already
been implemented in civil departments except in the Armed  Forces.  On  that
basis,  the  Tribunal  issued  a  direction  to  the  Department  to   issue
instructions for implementation of the DACP  Scheme  in  the  light  of  the
Office Memorandum dated 29th October 2008 issued by the Ministry  of  Health
& Family Welfare, dated  18th  November  2008  issued  by  the  Ministry  of
Finance and dated 27th November 2008 issued by the Ministry of Defence.

12.    According  to  the  respondents  (in  the  aforementioned   appeals),
therefore, it is not open to the department to contend to  the  contrary  or
take any position  which  would  inevitably  result  in  over  reaching  the
decision of this Court which has attained finality.  The appellants, on  the
other hand, contend that the factual position recorded by  the  Tribunal  is
contrary to the official record, which, however, was not placed  before  the
Tribunal or before this Court.  In that, the correct  factual  position  was
not brought to the notice of the Tribunal and also this Court, in the  Civil
Appeal filed before  this  Court  against  the  decision  of  the  Tribunal.
Nevertheless,  considering  the  far  reaching  financial   and   structural
ramifications for the Defence Forces and in larger public  interest,  it  is
essential to examine the core issue about the applicability of  DACP  Scheme
to  Commissioned  Officers  of  Armed  Forces.  It  is  submitted  that  the
department intends to proceed against the officials responsible  for  filing
such inaccurate and deficient pleadings –  which  entailed  in  recording  a
finding that there was no denial that the DACP scheme is equally  applicable
to AMC Cadre. There is ample contemporaneous record  to  indicate  that  the
Scheme was made applicable only to Civilian Doctors and not to  Commissioned
Officers serving  in  AMC  Cadre.  It  is  not  a  case  of  the  department
approbating and reprobating, but a case of an inaccurate  plea  being  taken
before the Tribunal  which  led  to  the  said  finding.  If  the  officials
responsible for filing such pleadings, in the departmental action are  found
to have done it intentionally, it would be a case bordering on  fraud.   The
recommendation made in respect of the DACP scheme by the 6th Pay  Commission
was limited to Civilian Doctors (not in respect of Commissioned Officers  in
three Services). Besides the resolution passed by the  Ministry  of  Finance
dated 29th August 2008, bearing No.1/1/08-IC  made  it  explicit  that  DACP
scheme  was  applicable  only  in  respect  of  civilian  employees  in  the
organized and unorganized sectors employed  by  the  Central  Government  as
also in the All India Services and to Chairpersons or Members of  regulatory
bodies. Besides the said resolution, the Ministry of Finance, Department  of
Expenditure, Implementation Cell on 29th August 2008 vide its  communication
made it amply clear to the Ministry of Defence that the  proposal  regarding
implementation of the Government decision of pay revision  qua  Officers  of
Armed Forces for grant of DACP to Doctors who are Commissioned  Officers  in
AMC Cadre has been deleted as the same is not applicable to the  Doctors  in
the Defence Forces. The Ministry of  Defence  accordingly,  on  30th  August
2008 issued a resolution extending the benefits of other  allowances  (other
than DACP) for the Commissioned Officers in three  Services  as  recommended
by the 6th Pay Commission and approved by the Government.  In  other  words,
the appropriate authority had consciously not extended the benefit  of  DACP
Scheme to Doctors who were Commissioned  Officers  in  AMC  Cadre.  Further,
according to the appellants the recommendation of the 6th Pay Commission  to
grant DACP to Doctors  was limited to Civilian Doctors and  not  to  Doctors
who were Commissioned Officers in AMC Cadre.  The  6th  Pay  Commission  has
provided a large number of other allowances to Commissioned Officers in  AMC
Cadre.   It is stated that Armed Forces Medical Services is a tri –  service
organization i.e. those who are commissioned as Doctors can be  employed  in
any of the three services, namely (i) Indian Army,  (ii)  Indian  Navy,  and
(iii)  Indian  Air  Force.  Commissioned  Officers  are  governed  by   Army
Instructions 74/1976.  It  is  submitted  that  doctors  joining  the  three
services as Commissioned Officers get the rank of :-

      (i) Lt/Capt/Flight Lieutenant /Flying Officer

      (ii) Captain/Major/Squadron Leader/Lt. Comdr.

      (iii) Lt.Colonel/Wing Comdr./Comdr.

      (iv) Colonel/Group Capt./Capt.Navy

      (v)Brigadier /Air Cmdr./Cmdr.Navy

      (vi) Major General/Air Vice Marshal/Rear Admiral

        (vii) Lt.General/Air Marshal/Vice Admiral.

 Their promotion in AMC Cadre up to the rank of Captain, Major and Lt.  Col.
are  by  time  scale  subject  to  meeting  the  prescribed   criteria   and
substantive promotion to the ranks of Colonel, Brigadier, Major General  and
Lieutenant General is  by selection. As per para  10  of  Army  Instructions
74/1976, officers granted permanent commission in  the  Army  Medical  Corps
receive pay and allowances at the  rates  laid down in  Pay  and  Allowances
Regulations for officers of the Army, as amended from time to  time  by  the
Ministry of Defence, Government of India in consultation with Department  of
Expenditure, Ministry of Finance. On the other hand, the Doctors serving  in
Ministry of Defence are categorized as civilian medical doctors. In  so  far
as civilian medical  doctors  are  concerned,  the  Government  has  already
extended DACP Scheme in terms of Circular issued by the Ministry of  Defence
dated 15th January 2009. The fact that no express denial was stated  in  the
pleadings filed before the Tribunal cannot be construed as admission of  the
Department to extend DACP even to doctors working  in  AMC  Cadre.  If  DACP
Scheme is extended to doctors working in AMC Cadre, it would  result  in  an
anomalous situation.  For, other Commissioned Officers working on  the  same
rank would not be entitled for DACP considering the  service  conditions  of
the Commissioned Officers who are governed by the Army Act, 1950,  the  Navy
Act, 1957 and the Air Force Act, 1950 as the case may be. A distinction  has
always been made between  AMC  Cadre  and  other  Medical  Services  in  the
Ministry of Defence. Even the previous  Pay  Commission  reports  maintained
that distinction while making recommendations, as has been done by  the  6th
Pay Commission.  The  6th  Pay  Commission  has  not  expressly  recommended
application of DACP Scheme to Commissioned Officers in AMC Cadre, as can  be
discerned  from  the  said  report  itself.   While  it  has  limited   that
recommendation  to  civilian  employees  it  has  not  done  so  to  doctors
generally.

13.   Reverting to the decision of the Tribunal in the case of Col.  Sanjeev
Sehgal (supra), in our opinion, the observation made therein  will  have  to
be  construed  in  the  context  of  the  final  direction  issued  to   the
Department. The authorities were directed  to  issue  instructions  for  the
implementation of DACP scheme in the light of  Annexure  A-1,  A-2  and  A-3
attached with the Original Application within three months from the date  of
receipt of copy of the order. That direction will have to  be  construed  to
mean that the authorities must act in accordance with law  and  extend  DACP
scheme even to the Commissioned Officers of AMC  Cadre,  if  permissible  in
law. No more and no less. Therefore, this Court whilst dismissing the  Civil
Appeal on 23rd September 2011 observed that no substantial question  of  law
of general/public importance arises for consideration. That decision  cannot
be given an expansive meaning so as  to  be  read  that  de-hors  the  legal
position,  DACP scheme be extended even to doctors working  as  Commissioned
Officers in AMC Cadre. Thus understood,  it  must  follow  that  the  issues
raised in the present appeals by the Government and  in  particular  by  the
Ministry of Defence are not concluded nor have they  attained  finality.  On
this finding, it may not be necessary for us to dilate  on  the  possibility
of an inaccurate reply affidavit having been filed before  the  Tribunal  to
oppose the Original Application of Col. Sanjeev Sehgal or  for  that  matter
the circumstances  in  which  the  appropriate  Authority  was  inclined  to
implement DACP scheme qua Commissioned  Officers  in  Armed  Forces.  It  is
possible that office note in  that  behalf  was  prepared  on  an  erroneous
assumption that the Court has directed that the DACP scheme  be  implemented
even in the case of  doctors  working  as  Commissioned  Officers  in  Armed
Forces. We, however, leave it open to the department to proceed against  the
concerned officers who were responsible for creating such confusion and  for
filing an inaccurate  affidavit  and  for  not  bringing  on  record  entire
material relevant for deciding the principal question about the  entitlement
of doctors working as Commissioned Officers in AMC Cadre to receive DACP.

14.   The next question is: whether this Court  should  itself  examine  the
gamut of arguments regarding applicability of DACP Scheme  even  to  Doctors
serving as Commissioned Officers in AMC Cadre.  Indeed, the entire  material
has now been placed before us, on the basis of which, it may be possible  to
answer the matters in issue.  The  appellants  have  relied  on  the  Office
Memorandum dated 29th August, 2008 issued by the  Ministry  of  Finance  and
the resolution issued by the Ministry of Defence dated  30th  August,  2008.
The former Office Memorandum including the Office  Noting  on  the  file  at
different levels, prima facie, indicates that there was  a  clear  exclusion
of applicability of DACP Scheme to Doctors working as Commissioned  Officers
in AMC Cadre.  In addition, our attention has been invited to the  reference
made to the 6th Pay Commission and the specific recommendation made  by  the
6th Pay Commission for civilian doctors  and  separate  recommendations  for
the Commissioned Officers of AMC Cadre.  Since the Tribunal has  not  either
in the case of Col. Sanjeev Sehgal  (supra)  or  in  the  impugned  decision
examined all these  aspects  on  its  merits,  we  deem  it  appropriate  to
relegate the parties before the Tribunal for reconsideration of  the  entire
matter afresh without being influenced  by  the  observations  made  in  the
order passed in case of Col. Sanjeev Sehgal  (supra)  or  the  dismissal  of
appeal against that decision by this Court on 23rd September, 2011.  We  say
so because we are of the considered opinion that  the  direction  issued  by
the Tribunal in the case of Col. Sanjeev Sehgal (supra)  to  the  Department
for  issuing  instructions  was  obviously  to  decide   the   issue   under
consideration in accordance with law, on the question  of  applicability  of
DACP Scheme even to the Doctors working  as  Commissioned  Officers  in  AMC
Cadre.  As noted in the earlier part of the judgment, controversy  has  far-
reaching structural ramifications to  the  Armed  Forces  besides  financial
implications and the possibility of a discrimination  within  the  cadre  if
additional benefit was to be given only to Doctors working  as  Commissioned
Officers in AMC Cadre and not to other Commissioned Officers working on  the
same rank. This requires deeper consideration.  For that reason, this  Court
during  the  pendency  of  these  appeals  had  permitted  the   appropriate
authority to examine the  entire  matter  and  take  a  necessary  decision.
Pursuant to that liberty,  the Deputy Secretary (Medical)  of  the  Ministry
of Defence, Government of  India,  has  informed  of  the  decision  of  the
Government vide communication dated 13th  January,  2016  to  the  Chairman,
Chiefs of Staff  Committee  (COSC).   It  would  be  open  to  the  original
applicants (respondents in the appeals) to question the correctness  thereof
in the remanded proceedings.  This would  provide  an  opportunity  to  both
sides to pursue their pleas and also facilitate the Tribunal to examine  the
correctness of the position and answer the matters in issue appropriately.

15.   For the nature of order we propose  to  pass,  it  is  unnecessary  to
dilate further on the other contentions.  To  do  substantial  and  complete
justice to the parties,  we  leave  all  questions  on  merits  open  to  be
considered by the Tribunal in the first instance. In  other  words,  we  are
not inclined to accept the grievance of the respondents in the appeals  that
the appellants should not be permitted to rely on new documents  which  were
not part of the record before the Tribunal  or  for  that  matter  incorrect
declaration  and  affidavit  filed  in  support  of  the  present   appeals.
Instead, we give liberty to both sides to file further pleadings  and  place
on record any further documents before the Tribunal.

16.   The appellants must file a comprehensive affidavit accompanied by  all
the relevant documents on  which  they  would  like  to  place  reliance  to
buttress the stand as to why DACP  Scheme  cannot  be  extended  to  Doctors
engaged as Commissioned Officers in AMC  Cadre.   That  affidavit  be  filed
within four weeks from today. The respondents (original applicants) will  be
free to file a response to that affidavit within three weeks from  the  date
of service of such affidavit on them. The Tribunal may endeavour to  dispose
of the remanded original applications expeditiously  preferably  within  six
months of the completion of pleadings.

17.    As  regards  the  writ  petition  filed  under  Article  32  of   the
Constitution, we dispose of the same with liberty to the writ petitioner  to
either intervene in the remanded proceedings before the Tribunal or to  file
a fresh Original Application for the relief claimed by him  in  the  present
writ petition, which can be decided by the Tribunal  along  with  the  other
remanded original applications.

18.   Accordingly, we partly allow the two appeals  preferred  by  Union  of
India and thereby set aside the order(s)  passed  by  the  Tribunal  in  the
respective appeals and instead remand the respective  Original  Applications
to the Tribunal for reconsideration of the entire matter de novo.

19.   Needless  to  observe,  the  Tribunal  may  decide  all  the  remanded
original applications or  any  further  original  application  on  the  same
subject  matter  analogously  to  avoid   any   conflicting   decision   and
multiplicity of proceedings.

20.   We grant liberty to the original applicant(s) to amend the  pleadings,
if so advised, including to ask for further relief. In that event,  however,
the Tribunal will give opportunity to the  appellants  (respondents  in  the
Original Application(s)) to file a response to  the  amended  pleadings  and
further relief, as the case may be.

21.   Both the appeals and writ petition are disposed of in the above  terms
with no order as to costs.



                                        ………………………………….J.
                                        (A.M.Khanwilkar)



                                        ………………………………….J.
                                        (Dr.D.Y.Chandrachud)
New Delhi,
Dated: 12th January, 2017
-----------------------
[1]





      [2]     O.A. No. 488 of 2011 before the Armed Forces Tribunal at
Chandigarh


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.